Exhibit (e)(1)
IRONWOOD SERIES TRUST
DISTRIBUTION AGREEMENT
AGREEMENT made as of the 1st day of January, 2002, and amended and restated
as of the "Effective Date" defined below, and amended and restated as of
February 22, 2007, by and between Ironwood Series Trust, a Massachusetts
business trust, with its principal office and place of business at 00 Xxxxxx
Xxxxx Xxxxxx, Xxxxxx, XX 00000 (the "Trust"), and Foreside Fund Services, LLC,
a Delaware limited liability company with its principal office and place of
business at Xxx Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxx 00000 ("Forum").
WHEREAS, the Trust is registered under the Investment Company Act of 1940,
as amended ("1940 Act"), as an open-end management investment company and may
issue its shares of beneficial interest, no par value ("Shares") in separate
series and classes; and
WHEREAS, Foreside is registered under the Securities Exchange Act of 1934,
as amended ("1934 Act"), as a broker-dealer and is engaged in the business of
selling shares of registered investment companies either directly to purchasers
or through other financial intermediaries;
WHEREAS, the Trust offers shares in various series as listed in Appendix A
hereto (each such series, together with all other series subsequently
established by the Trust and made subject to this Agreement being herein
referred to as a "Fund," and collectively as the "Funds") and the Trust offers
shares of various classes of each Fund as listed in Appendix A hereto (each
such class together with all other classes subsequently established by the
Trust in a Fund being herein referred to as a "Class," and collectively as the
"Classes"); and
WHEREAS, the Trust desires that Foreside offer, as principal underwriter,
the Shares of each Fund and Class thereof to the public and Foreside is willing
to provide those services on the terms and conditions set forth in this
Agreement in order to promote the growth of the Funds and facilitate the
distribution of the Shares;
WHEREAS, on or about October 1, 2004, the ownership of Foresidewill change
such that an "assignment," as defined in the 1940 Act, will occur;
WHEREAS, such assignment will require that this Agreement be re-executed in
the same form as previously approved; and
WHEREAS, this amended and restated Agreement will take effect immediately
after such change in control occurs (the "Effective Date").
NOW THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein, the Trust and Foreside hereby agree as follows:
SECTION 1. APPOINTMENT; DELIVERY OF DOCUMENTS
(a) The Trust hereby appoints Forum, and Foreside hereby agrees, to act as
distributor of the Shares for the period and on the terms set forth in this
Agreement.
(b) In connection therewith, the Trust has delivered to Foreside copies of:
(i) the Trust's Declaration of Trust and Bylaws (collectively, as amended from
time to time, "Organizational Documents"); (ii) the Trust's Registration
Statement and all amendments thereto filed with the U.S. Securities and
Exchange Commission ("SEC") pursuant to the Securities Act of 1933, as amended
("Securities Act"), or the 1940 Act ("Registration Statement"); (iii) the
current prospectuses and statements of additional information of each Fund and
Class thereof (collectively, as currently in effect and as amended or
supplemented, the "Prospectus"); (iv) each current plan of distribution or
similar document adopted by the Trust under Rule 12b-1 under the 1940 Act
("Plan") and each current shareholder service plan or similar document adopted
by the Trust ("Service Plan"); and (v) all procedures adopted by the Trust with
respect to the Funds (e.g., repurchase agreement procedures), and shall
promptly furnish Foreside with all amendments of or supplements to the
foregoing. The Trust shall deliver to Forum: (x) a certified copy of the
resolution of the Board of Trustees of the Trust (the "Board") appointing
Foreside and authorizing the execution and delivery of this Agreement; (y) a
copy of all proxy statements and related materials relating to the Funds; and
(z) any other documents, materials or information that Foreside shall
reasonably request to enable it to perform its duties pursuant to this
Agreement.
SECTION 2. EXCLUSIVE NATURE OF DUTIES
Foreside shall be the exclusive representative of the Trust to act as
distributor of the Funds except that the rights given under this Agreement to
Foreside shall not apply to: (i) Shares issued in connection with the merger,
consolidation or reorganization of any other investment company or series or
class thereof with a Fund or Class thereof; (ii) a Fund's acquisition by
purchase or otherwise of all or substantially all of the assets or stock of any
other investment company or series or class thereof; (iii) the reinvestment in
Shares by a Fund's shareholders of dividends or other distributions; or
(iv) any other offering by the Trust of securities to its shareholders
(collectively "exempt transactions").
SECTION 3. OFFERING OF SHARES
(a) Foreside shall have the right to buy from the Trust the Shares needed to
fill unconditional orders for unsold Shares of the Funds as shall then be
effectively registered under the Securities Act placed with Foreside by
investors or selected dealers or selected agents (each as defined in Section 11
hereof) acting as agent for their customers or on their own behalf.
Alternatively, Foreside may act as the Trust's agent, to offer, and to solicit
offers to subscribe to, unsold Shares of the Funds as shall then be effectively
registered under the Securities Act. Foreside will promptly forward all orders
and subscriptions to the Trust. The price that Foreside shall pay for Shares
purchased from the Trust shall be the net asset value per Share, determined as
set forth in Section 3(c) hereof, used in determining the public offering price
on which the orders are based. Shares purchased by Foreside are to be resold by
Foreside to investors at the public offering price, as set forth in
Section 3(b) hereof, or to selected dealers or selected agents acting as agent
for their customers that have entered into agreements with Foreside pursuant to
Section 11 hereof or acting on their own behalf. The Trust reserves the right
to sell Shares
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directly to investors through subscriptions received by the Trust, but no such
direct sales shall affect the sales charges due to Foreside hereunder.
(b) The public offering price of the Shares of a Fund, i.e., the price per
Share at which Foreside or selected dealers or selected agents may sell Shares
to the public or to those persons eligible to invest in Shares as described in
the applicable Prospectus, shall be the public offering price determined in
accordance with the then currently effective Prospectus of the Fund or Class
thereof under the Securities Act relating to such Shares. The public offering
price shall not exceed the net asset value at which Forum, when acting as
principal, is to purchase such Shares, plus, in the case of Shares for which an
initial sales charge is assessed, an initial charge equal to a specified
percentage or percentages of the public offering price of the Shares as set
forth in the current Prospectus relating to the Shares. In the case of Shares
for which an initial sales charge may be assessed, Shares may be sold to
certain classes of persons at reduced sales charges or without any sales charge
as from time to time set forth in the current Prospectus relating to the
Shares. The Trust will advise Foreside of the net asset value per Share at each
time as the net asset value per Share shall have been determined by the Trust
and at such other times as Foreside may reasonably request.
(c) The net asset value per Share of each Fund or Class thereof shall be
determined by the Trust, or its designated agent, in accordance with and at the
times indicated in the applicable Prospectus on each Fund business day in
accordance with the method set forth in the Prospectus and guidelines
established by the Board.
(d) The Trust reserves the right to suspend the offering of Shares of a Fund
or of any Class thereof at any time in the absolute discretion of the Board,
and upon notice of such suspension Foreside shall cease to offer Shares of the
Funds or Classes thereof specified in the notice.
(e) The Trust, or any agent of the Trust designated in writing to Foreside
by the Trust, shall be promptly advised by Foreside of all purchase orders for
Shares received by Foreside and all subscriptions for Shares obtained by
Foreside as agent shall be directed to the Trust for acceptance and shall not
be binding until accepted by the Trust. Any order or subscription may be
rejected by the Trust; provided, however, that the Trust will not arbitrarily
or without reasonable cause refuse to accept or confirm orders or subscriptions
for the purchase of Shares. The Trust or its designated agent will confirm
orders and subscriptions upon their receipt, will make appropriate book entries
and, upon receipt by the Trust or its designated agent of payment thereof, will
issue such Shares in certificated or uncertificated form pursuant to the
instructions of Forum. Foreside agrees to cause such payment and such
instructions to be delivered promptly to the Trust or its designated agent.
SECTION 4. REPURCHASE OR REDEMPTION OF SHARES BY THE TRUST
(a) Any of the outstanding Shares of a Fund or Class thereof may be tendered
for redemption at any time, and the Trust agrees to redeem or repurchase the
Shares so tendered in accordance with its obligations as set forth in the
Organizational Documents and the Prospectus relating to the Shares. The price
to be paid to redeem or repurchase the Shares of a Fund of Class thereof shall
be equal to the net asset value calculated in accordance with the provisions of
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Section 3(c) hereof less, in the case of Shares for which a deferred sales
charge is assessed, a deferred sales charge equal to a specified percentage or
percentages of the net asset value of those Shares as from time to time set
forth in the Prospectus relating to those Shares [or their cost, whichever is
less.] Shares of a Fund or Class thereof for which a deferred sales charge may
be assessed and that have been outstanding for a specified period of time may
be redeemed without payment of a deferred sales charge as from time to time set
forth in the Prospectus relating to those Shares.
(b) The Trust or its designated agent shall pay (i) the total amount of the
redemption price consisting of the redemption price less any applicable
deferred sales charge to the redeeming shareholder or its agent and (ii) except
as may be otherwise required by the Rules of Fair Practice (the "Rules") of the
National Association of Securities Dealers Regulation, Inc. (the "NASD") and
any interpretations thereof, any applicable deferred sales charges to Foreside
in accordance with Forum's instructions on or before the fifth business day (or
such other earlier business day as is customary in the investment company
industry) subsequent to the Trust or its agent having received the notice of
redemption in proper form.
(c) Redemption of Shares or payment therefor may be suspended at times when
the New York Stock Exchange is closed for any reason other than its customary
weekend or holiday closings, when trading thereon is restricted, when an
emergency exists as a result of which disposal by the Trust of securities owned
by a Fund is not reasonably practicable or it is not reasonably practicable for
the Trust fairly to determine the value of a Fund's net assets, or during any
other period when the SEC so requires or permits.
SECTION 5. DUTIES AND REPRESENTATIONS OF FORUM
(a) Foreside shall use reasonable efforts to sell Shares of the Funds upon
the terms and conditions contained herein and in the then current Prospectus.
Foreside shall devote reasonable time and effort to effect sales of Shares but
shall not be obligated to sell any specific number of Shares. The services of
Foreside to the Trust hereunder are not to be deemed exclusive, and nothing
herein contained shall prevent Foreside from entering into like arrangements
with other investment companies so long as the performance of its obligations
hereunder is not impaired thereby.
(b) In selling Shares of the Funds, Foreside shall use its best efforts in
all material respects duly to conform with the requirements of all federal and
state laws relating to the sale of the Shares. None of Forum, any selected
dealer, any selected agent or any other person is authorized by the Trust to
give any information or to make any representations other than as is contained
in a Fund's Prospectus or any advertising materials or sales literature
specifically approved in writing by the Trust or its agents.
(c) Foreside shall adopt and follow procedures for the confirmation of sales
to investors and selected dealers or selected agents, the collection of amounts
payable by investors and selected dealers or selected agents on such sales, and
the cancellation of unsettled transactions, as may be necessary to comply with
the requirements of the 1934 Act and the NASD.
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(d) Foreside represents and warrants to the Trust that:
(i) It is a limited liability company duly organized and existing and in
good standing under the laws of the State of Delaware;
(ii) It is duly qualified to carry on its business in the State of Maine;
(iii) It is empowered under applicable laws and by its Operating Agreement
to enter into this Agreement and perform its duties under this Agreement;
(iv) All requisite corporate proceedings have been taken to authorize it to
enter into and perform this Agreement;
(v) It has access to the necessary facilities, equipment and personnel to
perform its duties and obligations under this Agreement;
(vi) This Agreement, when executed and delivered, will constitute a legal,
valid and binding obligation of Forum, enforceable against Foreside in
accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting
the rights and remedies of creditors and secured parties; and
(vii) It is registered under the 1934 Act with the SEC as a broker-dealer,
it is a member in good standing of the NASD, it will abide by the rules and
regulations of the NASD, and it will notify the Trust if its membership in
the NASD is terminated or suspended.
(e) Notwithstanding anything in this Agreement, including the Appendices, to
the contrary, Foreside makes no warranty or representation as to the number of
selected dealers or selected agents with which it has entered into agreements
in accordance with Section 11 hereof, as to the availability of any Shares to
be sold through any selected dealer, selected agent or other intermediary or as
to any other matter not specifically set forth herein.
SECTION 6. DUTIES AND REPRESENTATIONS OF THE TRUST
(a) The Trust shall furnish to Foreside copies of all financial statements
and other documents to be delivered to shareholders or investors at least two
Fund business days prior to such delivery and shall furnish Foreside copies of
all other financial statements, documents and other papers or information which
Foreside may reasonably request for use in connection with the distribution of
Shares. The Trust shall make available to Foreside the number of copies of the
Funds' Prospectuses as Foreside shall reasonably request.
(b) The Trust shall take, from time to time, subject to the approval of the
Board and any required approval of the shareholders of the Trust, all action
necessary to fix the number of authorized Shares (if such number is not
limited) and to register the Shares under the Securities Act, to the end that
there will be available for sale the number of Shares as reasonably may be
expected to be sold pursuant to this Agreement.
(c) The Trust shall execute any and all documents, furnish to Foreside any
and all information, otherwise use its best efforts to take all actions that
may be reasonably necessary
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and cooperate with Foreside in taking any action as may be necessary to
register or qualify Shares for sale under the securities laws of the various
states of the United States and other jurisdictions ("States") as Foreside
shall designate (subject to approval by the Trust); provided that Foreside
shall not be required to register as a broker-dealer or file a consent to
service of process in any State and neither the Trust nor any Fund or Class
thereof shall be required to qualify as a foreign corporation, trust or
association in any State. Any registration or qualification may be withheld,
terminated or withdrawn by the Trust at any time in its discretion. Foreside
shall furnish such information and other material relating to its affairs and
activities as may be required by the Trust in connection with such registration
or qualification.
(d) The Trust represents and warrants to Foreside that:
(i) It is a business trust duly organized and existing and in good standing
under the laws of the Commonwealth of Massachusetts;
(ii) It is empowered under applicable laws and by its Organizational
Documents to enter into and perform this Agreement;
(iii) All proceedings required by the Organizational Documents have been
taken to authorize it to enter into and perform its duties under this
Agreement;
(iv) It is an open-end management investment company registered with the SEC
under the 1940 Act;
(v) All Shares, when issued, shall be validly issued, fully paid and
non-assessable;
(vi) This Agreement, when executed and delivered, will constitute a legal,
valid and binding obligation of the Trust, enforceable against the Trust in
accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting
the rights and remedies of creditors and secured parties;
(vii) The Registration statement is currently effective and will remain
effective with respect to all Shares of the Funds and Classes thereof being
offered for sale;
(viii) The Registration Statement and Prospectuses have been or will be, as
the case may be, carefully prepared in conformity with the requirements of
the Securities Act and the rules and regulations thereunder;
(ix) The Registration Statement and Prospectuses contain or will contain all
statements required to be stated therein in accordance with the Securities
Act and the rules and regulations thereunder; all statements of fact
contained or to be contained in the Registration Statement or Prospectuses
are or will be true and correct at the time indicated or on the effective
date as the case may be; and neither the Registration Statement nor any
Prospectus, when they shall become effective or be authorized for use, will
include an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading to a purchaser of Shares;
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(x) It will from time to time file such amendment or amendments to the
Registration Statement and Prospectuses as, in the light of then-current and
then-prospective developments, shall, in the opinion of its counsel, be
necessary in order to have the Registration Statement and Prospectuses at
all times contain all material facts required to be stated therein or
necessary to make any statements therein not misleading to a purchaser of
Shares ("Required Amendments");
(xi) It shall not file any amendment to the Registration Statement or
Prospectuses without giving Foreside reasonable advance notice thereof;
provided, however, that nothing contained in this Agreement shall in any way
limit the Trust's right to file at any time such amendments to the
Registration Statement or Prospectuses, of whatever character, as the Trust
may deem advisable, such right being in all respects absolute and
unconditional; and
(xii) Any amendment to the Registration Statement or Prospectuses hereafter
filed will, when it becomes effective, contain all statements required to be
stated therein in accordance with the 1940 Act and the rules and regulations
thereunder; all statements of fact contained in the Registration Statement
or Prospectuses will, when be true and correct at the time indicated or on
the effective date as the case may be; and no such amendment, when it
becomes effective, will include an untrue statement of a material fact or
will omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading to a purchaser of
the Shares.
SECTION 7. STANDARD OF CARE
(a) Foreside shall use its best judgment and reasonable efforts in rendering
services to the Trust under this Agreement but shall be under no duty to take
any action except as specifically set forth herein or as may be specifically
agreed to by Foreside in writing. Foreside shall not be liable to the Trust or
any of the Trust's shareholders for any error of judgment or mistake of law,
for any loss arising out of any investment, or for any action or inaction of
Foreside in the absence of bad faith, willful misfeasance or negligence in the
performance of Forum's duties or obligations under this Agreement or by reason
or Forum's reckless disregard of its duties and obligations under this
Agreement.
(b) Foreside Indemnitees (as defined in Section 8) shall not be liable for
any action taken or failure to act in reasonable and good faith reliance upon:
(i) the advice of the Trust or the Trust's outside counsel, or the advice of
counsel to Foreside or to Foreside Administrative Services, LLC; provided,
however, that a Foreside Indemnitee shall not be so exculpated, and shall
not be indemnified and held harmless hereunder, if it relies with respect to
such matter solely on advice rendered by counsel to Foreside if such advice
or opinion of such counsel is rendered negligently;
(ii) any oral instruction which it receives and which it reasonably believes
in good faith was transmitted by the person or persons authorized by the
Board to give such oral instruction (Foreside shall have no duty or
obligation to make any inquiry or effort of certification of such oral
instruction);
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(iii) any written instruction or certified copy of any resolution of the
Board, and Foreside may rely upon the genuineness of any such document or
copy thereof reasonably believed in good faith by Foreside to have been
validly executed; or
(iv) any signature, instruction, request, letter of transmittal,
certificate, opinion of counsel, statement, instrument, report, notice,
consent, order, or other document reasonably believed in good faith by
Foreside to be genuine and to have been signed or presented by the Trust or
other proper party or parties;
and Foreside shall not be under any duty or obligation to inquire into the
validity or invalidity or authority or lack thereof of any statement, oral or
written instruction, resolution, signature, request, letter of transmittal,
certificate, opinion of counsel, instrument, report, notice, consent, order, or
any other document or instrument which Foreside reasonably believes in good
faith to be genuine.
(c) Foreside shall not be responsible or liable for any failure or delay in
performance of its obligations under this Agreement arising out of or caused,
directly or indirectly, by circumstances beyond its reasonable control
including, without limitation, acts of civil or military authority, national
emergencies, labor difficulties, fire, mechanical breakdowns, flood or
catastrophe, acts of God, insurrection, war, riots or failure of the mails,
transportation, communication or power supply. In addition, to the extent
Forum's obligations hereunder are to oversee or monitor the activities of third
parties, Foreside shall not be liable for any failure or delay in the
performance of Forum's duties caused, directly or indirectly, by the failure or
delay of such third parties in performing their respective duties or
cooperating reasonably and in a timely manner with Forum.
SECTION 8. INDEMNIFICATION
(a) The Trust will indemnify, defend and hold Forum, its employees, agents,
directors and officers and any person who controls Foreside within the meaning
of section 15 of the Securities Act or section 20 of the 1934 Act ("Foreside
Indemnitees") free and harmless from and against any and all claims, demands,
actions, suits, judgments, liabilities, losses, damages, costs, charges,
reasonable counsel fees and other expenses of every nature and character
(including the cost of investigating or defending such claims, demands,
actions, suits or liabilities and any reasonable counsel fees incurred in
connection therewith) which any Foreside Indemnitee may incur, under the
Securities Act, or under common law or otherwise, arising out of or based upon
any alleged untrue statement of a material fact contained in the Registration
Statement or the Prospectuses or arising out of or based upon any alleged
omission to state a material fact required to be stated in any one thereof or
necessary to make the statements in any one thereof not misleading, unless such
statement or omission was made in reliance upon, and in conformity with,
information furnished in writing to the Trust in connection with the
preparation of the Registration Statement or exhibits to the Registration
Statement by or on behalf of Foreside ("Foreside Claims").
After receipt of Forum's notice of termination under Section 13(e), the
Trust shall indemnify and hold each Foreside Indemnitee free and harmless from
and against any Foreside Claim; provided, that the term Foreside Claim for
purposes of this sentence shall mean any
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Foreside Claim related to the matters for which Foreside has requested
amendment to the Registration Statement and for which the Trust has not filed a
Required Amendment, regardless of with respect to such matters whether any
statement in or omission from the Registration Statement was made in reliance
upon, or in conformity with, information furnished to the Trust by or on behalf
of Forum.
(b) The Trust may assume the defense of any suit brought to enforce any
Foreside Claim and may retain counsel of good standing chosen by the Trust and
approved by Forum, which approval shall not be withheld unreasonably. The Trust
shall advise Foreside that it will assume the defense of the suit and retain
counsel within ten (10) days of receipt of the notice of the claim. If the
Trust assumes the defense of any such suit and retains counsel, the defendants
shall bear the fees and expenses of any additional counsel that they retain. If
the Trust does not assume the defense of any such suit, or if Foreside does not
approve of counsel chosen by the Trust or has been advised that it may have
available defenses or claims that are not available to or conflict with those
available to the Trust, the Trust will reimburse any Foreside Indemnitee named
as defendant in such suit for the reasonable fees and expenses of any counsel
that person retains. A Foreside Indemnitee shall not settle or confess any
claim without the prior written consent of the Trust, which consent shall not
be unreasonably withheld or delayed.
(c) Foreside will indemnify, defend and hold the Trust, its employees,
agents, officers and Trustees (collectively, the "Trust Indemnitees"), free and
harmless from and against any and all claims, demands, actions, suits,
judgments, liabilities, losses, damages, costs, charges, reasonable counsel
fees and other expenses of every nature and character (including the cost of
investigating or defending such claims, demands, actions, suits or liabilities
and any reasonable counsel fees incurred in connection therewith), but only to
the extent that such claims, demands, actions, suits, judgments, liabilities,
losses, damages, costs, charges, reasonable counsel fees and other expenses
result from, arise out of or are based upon:
(i) any alleged untrue statement of a material fact contained in the
Registration Statement or Prospectus or any alleged omission of a material
fact required to be stated or necessary to make the statements therein not
misleading, if such statement or omission was made in reliance upon, and in
conformity with, information furnished to the Trust in writing in connection
with the preparation of the Registration Statement or Prospectus by or on
behalf of Forum;
(ii) any act of, or omission by, Foreside or its sales representatives that
does not conform to the standard of care set forth in Section 7 of this
Agreement ("Trust Claims");
(iii) any breach of this Agreement by Forum; or
(iv) Forum's violation of law.
(d) Foreside may assume the defense of any suit brought to enforce any Trust
Claim and may retain counsel of good standing chosen by Foreside and approved
by the Trust, which approval shall not be withheld unreasonably. Foreside shall
advise the Trust that it will assume the defense of the suit and retain counsel
within ten (10) days of receipt of the notice of the claim. If Foreside assumes
the defense of any such suit and retains counsel, the defendants shall
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bear the fees and expenses of any additional counsel that they retain. If
Foreside does not assume the defense of any such suit, or if Trust does not
approve of counsel chosen by Foreside or has been advised that it may have
available defenses or claims that are not available to or conflict with those
available to Forum, Foreside will reimburse any Trust Indemnitee named as
defendant in such suit for the reasonable fees and expenses of any counsel that
person retains. A Trust Indemnitee shall not settle or confess any claim
without the prior written consent of Forum, which consent shall not be
unreasonably withheld or delayed.
(e) The Trust's and Forum's obligations to provide indemnification under
this Section is conditioned upon the Trust or Foreside receiving notice of any
action brought against a Foreside Indemnitee or Trust Indemnitee, respectively,
by the person against whom such action is brought within twenty (20) days after
the summons or other first legal process is served. Such notice shall refer to
the person or persons against whom the action is brought. The failure to
provide such notice shall not relieve the party entitled to such notice of any
liability that it may have to any Foreside Indemnitee or Trust Indemnitee
except to the extent that the ability of the party entitled to such notice to
defend such action has been materially adversely affected by the failure to
provide notice.
(f) The provisions of this Section and the parties' representations and
warranties in this Agreement shall remain operative and in full force and
effect regardless of any investigation made by or on behalf of any Foreside
Indemnitee or Trust Indemnitee and shall survive the sale and redemption of any
Shares made pursuant to subscriptions obtained by Forum. The indemnification
provisions of this Section will inure exclusively to the benefit of each person
that may be a Foreside Indemnitee or Trust Indemnitee at any time and their
respective successors and assigns (it being intended that such persons be
deemed to be third party beneficiaries under this Agreement).
(g) Each party agrees promptly to notify the other party of the commencement
of any litigation or proceeding of which it becomes aware arising out of or in
any way connected with the issuance or sale of Shares.
(h) Nothing contained herein shall require the Trust to take any action
contrary to any provision of its Organizational Documents or any applicable
statute or regulation or shall require Foreside to take any action contrary to
any provision of its Organizational Documents or any applicable statute or
regulation; provided, however, that neither the Trust nor Foreside may amend
their Organizational Documents in any manner that would result in a violation
of a representation or warranty made in this Agreement.
(i) Nothing contained in this section shall be construed to protect Foreside
against any liability to the Trust or its security holders to which Foreside
would otherwise be subject by reason of its failure to satisfy the standard of
care set forth in Section 7 of this Agreement.
SECTION 9. NOTIFICATION BY THE TRUST
The Trust shall advise Foreside immediately: (i) of any request by the SEC
for amendments to the Trust's Registration Statement or Prospectus or for
additional information; (ii) in the event of the issuance by the SEC of any
stop order suspending the effectiveness of the
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Trust's Registration Statement or any Prospectus or the initiation of any
proceedings for that purpose; (iii) of the happening of any material event
which makes untrue any statement made in the Trust's then current Registration
Statement or Prospectus or which requires the making of a change in either
thereof in order to make the statements therein not misleading; and (iv) of all
action of the SEC with respect to any amendments to the Trust's Registration
Statement or Prospectus which may from time to time be filed with the
Commission under the 1940 Act or the Securities Act.
SECTION 10. COMPENSATION; EXPENSES
(a) In consideration of Forum's services in connection with the distribution
of Shares of each Fund and Class thereof, Foreside shall receive: (i) any
applicable sales charge assessed upon investors in connection with the purchase
of Shares; (ii) from the Trust, any applicable contingent deferred sales charge
("CDSC") assessed upon investors in connection with the redemption of Shares;
(iii) from the Trust, the [distribution service fees] with respect to the
Shares of those Classes as designated in Appendix A for which a Plan is
effective (the "Distribution Fee"); and (iv) from the Trust, the [shareholder
service fees] with respect to the Shares of those Classes as designated in
Appendix A for which a Service Plan is effective (the "Shareholder Service
Fee"). The Distribution Fee and Shareholder Service Fee shall be accrued daily
by each applicable Fund or Class thereof and shall be paid monthly as promptly
as possible after the last day of each calendar month but in any event on or
before the fifth (5th) Fund business day after month-end, at the rate or in the
amounts set forth in Appendix A [and, as applicable, the Plan(s)]. The Trust
grants and transfers to Foreside a general lien and security interest in any
and all securities and other assets of a Fund now or hereafter maintained in an
account at the Fund's custodian on behalf of the Fund to secure any
Distribution Fees and Shareholder Service Fees owed Foreside by the Trust under
this Agreement.
(b) The Trust shall cause its transfer agent (the "Transfer Agent") to
withhold, from redemption proceeds payable to holders of Shares of the Funds
and the Classes thereof, all CDSCs properly payable by the shareholders in
accordance with the terms of the applicable Prospectus and shall cause the
Transfer Agent to pay such amounts over to Foreside as promptly as possible
after the settlement date for each redemption of Shares.
(c) Except as specified in Sections 8 and 10(a), Foreside shall be entitled
to no compensation or reimbursement of expenses for the services provided by
Foreside pursuant to this Agreement. [Foreside may receive compensation from
Ironwood Capital Management, LLC. ("Adviser") for its services hereunder or for
additional services all as may be agreed to between the Adviser and Foreside
and disclosed to the Board.]
(d) The Trust shall be responsible and assumes the obligation for payment of
all the expenses of the Funds, including fees and disbursements of its counsel
and auditors, in connection with the preparation and filing of the Registration
Statement and Prospectuses (including but not limited to the expense of setting
in type the Registration Statement and Prospectuses and printing sufficient
quantities for internal compliance, regulatory purposes and for distribution to
current shareholders).
- 11 -
(e) The Trust shall bear the cost and expenses: (i) of the registration of
the Shares for sale under the Securities Act; (ii) of the registration or
qualification of the Shares for sale under the securities laws of the various
States; (iii) if necessary or advisable in connection therewith, of qualifying
the Trust, the Funds or the Classes thereof (but not Forum) as an issuer or as
a broker or dealer, in such States as shall be selected by the Trust and
Foreside pursuant to Section 6(c) hereof; and (iv) payable to each State for
continuing registration or qualification therein until the Trust decides to
discontinue registration or qualification pursuant to Section 6(c) hereof.
Foreside shall pay all expenses relating to Forum's broker-dealer qualification.
SECTION 11. SELECTED DEALER AND SELECTED AGENT AGREEMENTS
Subject to approval of the Board, Foreside shall have the right to enter
into selected dealer agreements with securities dealers of its choice
("selected dealers") and selected agent agreements with depository institutions
and other financial intermediaries of its choice ("selected agents") for the
sale of Shares and to fix therein the portion of the sales charge, if any, that
may be allocated to the selected dealers or selected agents. The Trust shall
approve the forms of agreements with selected dealers or selected agents and
shall review the compensation set forth therein. Shares of each Fund or Class
thereof shall be resold by selected dealers or selected agents only at the
public offering price(s) set forth in the Prospectus relating to the Shares.
Within the United States, Foreside shall offer and sell Shares of the Funds
only to such selected dealers as are members in good standing of the NASD.
SECTION 12. CONFIDENTIALITY
Foreside agrees to treat all records and other information related to the
Trust as proprietary information of the Trust and, on behalf of itself and its
employees, to keep confidential all such information, except that Foreside may:
(a) prepare or assist in the preparation of periodic reports to shareholders
and regulatory bodies such as the SEC;
(b) provide information typically supplied in the investment company
industry to companies that track or report price, performance or other
information regarding investment companies;
(c) release such other information as approved by the Trust, which approval
shall not be withheld where Foreside is advised by counsel that it may be
exposed to civil or criminal contempt proceedings for failure to release the
information (provided, however, that Foreside shall seek the approval of the
Trust as promptly as possible so as to enable the Trust to pursue such legal or
other action as it may desire to prevent the release of such information) or
when so requested by the Trust; and
(d) Foreside shall abide by the Trust's privacy policy pursuant to
Regulation S-P promulgated under Section 504 of the Xxxxx-Xxxxx-Xxxxxx Act.
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SECTION 13. EFFECTIVENESS, DURATION AND TERMINATION
(a) This Agreement shall become effective with respect to each Fund on the
later of (i) the date first written above. Upon effectiveness of this
Agreement, it shall supersede all previous agreements between the parties
hereto covering the subject matter hereof insofar as such Agreement may have
been deemed to relate to the Funds.
(b) This Agreement shall continue in effect with respect to a Fund for a
period of one year from its effectiveness and thereafter shall continue in
effect with respect to a Fund until terminated; provided, that continuance is
specifically approved at least annually (i) by the Board or by a vote of a
majority of the outstanding voting securities of the Fund and (ii) by a vote of
a majority of Trustees of the Trust (x) who are not parties to this Agreement
or interested persons of any such party (other than as Trustees of the Trust)
and (y) with respect to each class of a Fund for which there is an effective
Plan, who do not have any direct or indirect financial interest in any such
Plan applicable to the class or in any agreements related to the Plan, cast in
person at a meeting called for the purpose of voting on such approval.
(c) This Agreement may be terminated at any time with respect to a Fund,
without the payment of any penalty, (i) by the Board or by a vote of a majority
of the outstanding voting securities of the Fund or, with respect to each class
of a Fund for which there is an effective Plan, a majority of Trustees of the
Trust who do not have any direct or indirect financial interest in any such
Plan or in any agreements related to the Plan, on sixty (60) days' written
notice to Foreside or (ii) by Foreside on sixty (60) days' written notice to
the Trust.
(d) This Agreement shall automatically terminate upon its assignment and
upon the termination of Forum's membership in the NASD.
(e) If the Trust shall not file a Required Amendment within fifteen days
following receipt of a written request from Foreside to do so, Foreside may, at
its option, terminate this Agreement immediately.
(f) The obligations of Sections 8, 9, 12, 13(f), 16 17(a) and 17(j); shall
survive any termination of this Agreement.
SECTION 14. NOTICES
Any notice required or permitted to be given hereunder by either party to
the other shall be deemed sufficiently given if personally delivered or sent by
telegram, facsimile or registered, certified or overnight mail, postage
prepaid, addressed by the party giving such notice to the other party at the
last address furnished by the other party to the party giving such notice, and
unless and until changed pursuant to the foregoing provisions hereof each such
notice shall be addressed to the Trust or Forum, as the case may be, at their
respective principal places of business.
SECTION 15. ACTIVITIES OF FORUM
Except to the extent necessary to perform Forum's obligations hereunder,
nothing herein shall be deemed to limit or restrict Forum's right, or the right
of any of Forum's employees, agents, officers or directors who may also be a
Trustee, officer or employee of the Trust, or affiliated persons of the Trust
to engage in any other business or to devote time and attention to
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the management or other aspects of any other business, whether of a similar or
dissimilar nature, or to render services of any kind to any other corporation,
trust, firm, individual or association.
SECTION 16. LIMITATION OF SHAREHOLDER AND TRUSTEE LIABILITY
The Trustees of the Trust and the shareholders of each Fund shall not be
liable for any obligations of the Trust or of the Funds under this Agreement,
and Foreside agrees that, in asserting any rights or claims under this
Agreement, it shall look only to the assets and property of the Trust or the
Fund to which Forum's rights or claims relate in settlement of such rights or
claims, and not to the Trustees of the Trust or the shareholders of the Funds.
SECTION 17. MISCELLANEOUS
(a) Neither party to this Agreement shall be liable to the other party for
consequential damages under any provision of this Agreement.
(b) No provisions of this Agreement may be amended or modified in any manner
except by a written agreement properly authorized and executed by both parties
hereto.
(c) This Agreement shall be governed by, and the provisions of this
Agreement shall be construed and interpreted under and in accordance with, the
laws of the State of Delaware.
(d) This Agreement constitutes the entire agreement between the parties
hereto and supersedes any prior agreement with respect to the subject matter
hereof, whether oral or written.
(e) This Agreement may be executed by the parties hereto on any number of
counterparts, and all of the counterparts taken together shall be deemed to
constitute one and the same instrument.
(f) If any part, term or provision of this Agreement is held to be illegal,
in conflict with any law or otherwise invalid, the remaining portion or
portions shall be considered severable and not be affected, and the rights and
obligations of the parties shall be construed and enforced as if the Agreement
did not contain the particular part, term or provision held to be illegal or
invalid. This Agreement shall be construed as if drafted jointly by both
Foreside and Trust and no presumptions shall arise favoring any party by virtue
of authorship of any provision of this Agreement.
(g) Section headings in this Agreement are included for convenience only and
are not to be used to construe or interpret this Agreement.
(h) Notices, requests, instructions and communications received by the
parties at their respective principal addresses, set forth above, or at such
other address as a party may have designated in writing, shall be deemed to
have been properly given.
(i) Nothing contained in this Agreement is intended to or shall require
Forum, in any capacity hereunder, to perform any functions or duties on any day
other than a Fund business day. Functions or duties normally scheduled to be
performed on any day which is not a Fund
- 14 -
business day shall be performed on, and as of, the next Fund business day,
unless otherwise required by law.
(j) Notwithstanding any other provision of this Agreement, the parties agree
that the assets and liabilities of each Fund are separate and distinct from the
assets and liabilities of each other Fund and that no Fund shall be liable or
shall be charged for any debt, obligation or liability of any other Fund,
whether arising under this Agreement or otherwise.
(k) Each of the undersigned warrants and represents that they have full
power and authority to sign this Agreement on behalf of the party indicated and
that their signature will bind the party indicated to the terms hereof and each
party hereto warrants and represents that this Agreement, when executed and
delivered, will constitute a legal, valid and binding obligation of the party,
enforceable against the party in accordance with its terms, subject to
bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting the rights and remedies of creditors and secured parties.
(l) The terms "vote of a majority of the outstanding voting securities,"
"interested person," "affiliated person" and "assignment" shall have the
meanings ascribed thereto in the 1940 Act.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their names and on their behalf by and through their duly
authorized officers, as of the day and year first above written.
IRONWOOD SERIES TRUST
/s/ Xxxxxx X. Xxxxxxxx
By: -----------------------------
Xxxxxx X. Xxxxxxxx
President
FORESIDE FUND SERVICES, LLC
/s/ Xxxx X. Xxxxxx
By: -----------------------------
Xxxx X. Xxxxxx
President
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IRONWOOD SERIES TRUST
DISTRIBUTION AGREEMENT
APPENDIX A -- AS AMENDED FEBRUARY 22, 2007
FUNDS OF THE TRUST:
.. Ironwood Isabelle Small Company Stock Fund
CLASSES OF THE TRUST:
CLASSES OF THE TRUST DISTRIBUTION FEE
-------------------- ----------------
Investment Shares 0.25%
Institutional Shares N/A
- A1 -
